This is an appeal by the Gulf Refining Company, respondent and cross-complainant below, from a final decree of the circuit court of Mobile County, in equity, granting relief to Mrs. Martha Sawyer, complainant and cross-respondent below, and denying relief to Gulf. Both the original bill and cross-bill seek to reform the description of lands contained in a gas and oil lease given by Mrs. Sawyer to Gulf. The description contained in the lease is as follows:
Our concern is with the second paragraph of the description. There is no dispute with respect to the 32-acre tract contained in the first paragraph. Mrs. Sawyer contends that this tract was all that was intended to be included in the lease, and that none of her other lands should have been included.
Lot 27 is her home place. It contains about one-half acre and is located about a mile from a five-acre tract owned by her. Gulf contends it was intended that both Lot 27 and the five-acre tract be included in the lease. These two tracts are in different sections. As appears from the description, the words "more particularly described, etc.", purportedly describes Lot 27. There is no question that such is not the case.
Gulf, by its cross-bill, seeks to reform the description by adding the words "`also property' or words of similar import" just following the words "Town of Citronelle" in the description. Gulf's contention is that in drafting the lease, Mrs. Lois Nichols, who obtained the lease for Gulf, inadvertently omitted the words "also a lot" at the place indicated.
As stated in Gulf's brief, "the entire controversy in this case revolves around the construction,—when taking into consideration the surrounding circumstances,— of the" second paragraph of the description.
It seems to us that the following from the trial court's decree clearly states the issue with respect to the primary question of reformation, viz.:
"For an orderly determination of the issues in this case the Court first turns to a determination of the matters set forth by Gulf Refining Company in its cross-bill. Generally speaking the burden of the cross-bill filed by Gulf Refining Company seeks reformation of the lease given it by Martha E. Sawyer August 4, 1953, on certain lands in Mobile County, Alabama, and seeks to declare the coverage of the lease and a quieting of the title of Gulf Refining Company to the mineral interests it claims under such oil and gas leases on certain lands in the town of Citronelle, Alabama.
"Decision of this cause rests squarely on the question of what lands were intended to be embraced in the lease from Martha E. Sawyer to Gulf Refining Company dated August 4, 1953 * * *. In short, what lands are in fact covered by the lease and what lands were in fact intended to be covered by the lease?
"No question is raised by any party that the lease was not intended to cover the lands described in the first descriptive paragraph above. These lands are located several miles North of Citronelle in Section Eighteen, Township Two North, Range Two West, Mobile County, Alabama.
"Complainant and Respondent Dan L. Reynolds, Inc., contend that it was never the intention between Complainant Martha E. Sawyer and Respondent Gulf Refining Company that this lease should cover any property within the Town of Citronelle. Lot Twenty-seven, Block Seventeen, Dickie Subdivision of the Town of Citronelle, is a residence located at the corner of State and Oak Streets in Citronelle and is the Complainant's home. This lot is located in Section Thirty-six, Township Two North, Range Three West. Complainant contends that this lot was never at any time intended to be included in the
"Gulf Refining Company contends, contrary to Complainant and Respondent Dan L. Reynolds, Inc., that it was intended by the parties that the Gulf Refining Company lease should cover all of Complainant's lands in Mobile County (i. e. her `town lands', and the lands in Section Eighteen, Township Two North, Range Three West, as well). Gulf Refining Company further says that, by a mistake of the scrivener, the second paragraph of the lease given it by Martha E. Sawyer omitted the words `also a lot' following the description in the second paragraph of the lease, of Lot Twenty-seven, Block Seventeen, Dickie Subdivision, Town of Citronelle. In short Gulf Refining Company asserts that the second paragraph of the lease should be reformed to correct what it says was a scrivener's error. There was evidence that in all events, Gulf Refining Company noted the alleged error or omission in the legal description in the second paragraph within a week or so after the lease was signed by Mrs. Sawyer and delivered to it. No steps were shown to have been taken to correct the error, if one existed, or to call it to Mrs. Sawyer's attention at all. The actual purported coverage of the lease, by the evidence, was discovered by Complainant some two years after the lease was signed and when she sought to make a lease to Dan L. Reynolds, Inc. * * * Laches was pleaded.
"The actual taking of much oral evidence by the Court upon trial of the cause consumed a number of days of trial time. Moreover the Court presided also at the taking of the depositions of Martha E. Sawyer and Mrs. Lorena Martin * * *. Upon careful and attentive consideration of all of the pleadings and evidence, the testimony of the witnesses, their demeanor as observed by the Court, and a careful and close study of the various voluminous exhibits, some nearly fifty in number, whether offered by one party or the other, the Court is of the opinion that under all of the facts in this case Gulf Refining Company is not entitled to reformation of the second paragraph of the lease so as to include the lands of the Complainant located in Section Twenty-six, Township Two North, Range Three West.
"The second paragraph of the lease on its face covers either the Complainant's home or the lands in Section Twenty-six, but not both of them. Gulf Refining Company contended that the description in the second paragraph was intended to include both and that the lease should be reformed to add after the words `Town of Citronelle' the words `also a lot'. In the Court's opinion as just stated Respondent Gulf Refining Company is not entitled to reformation of the lease to include those words.
"Turning now to the Complainant's contention that the lease was never intended to cover any of her `town property', whether the same be her home at Lot Twenty-Seven, Block Seventeen, Dickie Subdivision or the lands in Section Twenty-six, the Court is of the opinion that the lease was never intended to cover or embrace
Gulf argues that the trial court erred to a reversal in each of the following respects:
(1) In reforming the description in the lease in the manner contended for by Mrs. Sawyer and denying reformation as contended for by Gulf.
(2) In refusing to admit in evidence a pad containing a memorandum made by Mrs. Lois Nichols containing a correct description of Mrs. Sawyer's lands (that is, the 32-acre tract, the home lot and the 5-acre tract).
(3) In refusing to allow Mrs. Nichols to testify as to whether or not she could recite, verbatim, the contents of the written memorandum on the pad, after having refreshed her recollection of the contents of same.
(4) In excluding the answer "I did" given by Mrs. Nichols when asked the following question by Gulf's attorney, viz.: "Mrs. Nichols, in transcribing the description, which was given to you by Mrs. Sawyer, did you or not leave out a portion of that description by mistake?"
(5) In denying to Gulf the right to inquire of Mrs. Nichols if she was acting, or had authority to act, as agent for Gulf in any way other than obtaining gas and oil leases.
The evidence in the case (including numerous documentary exhibits) is rather voluminous. It is obvious that the case was well tried, presenting to the trial court what seems to us to be a factual issue to be resolved from conflicting tendencies in the evidence.
Apparently, Gulf relies on the insufficiency of the evidence to sustain the decree. But its brief does not contain "a condensed recital of the evidence given by each witness in narrative form", as required by Rule 9 of the Revised Rules of the Supreme Court, 261 Ala. XIX, XXII, Code 1940, Tit. 7 Appendix, 1955 Cum. Pock.Part, Appendix, pp. 219, 222. However, we have read and carefully considered the evidence and do not think we would be warranted in setting aside the decree. What was said in Pugh v. Cannon, 266 Ala. 97, 101-102, 94 So.2d 386, 390, seems equally applicable here, viz.:
We see no good purpose to be served by entering upon a detailed discussion and
About the end of July, 1953, Mrs. Lois Nichols and W. W. Ruhlen, on behalf of Gulf, went to see Mrs. Sawyer at her home in Citronelle for the purpose of obtaining an oil and gas lease from her. Mrs. Nichols testified that during the visit she wrote on a pad a description of certain lands owned by Mrs. Sawyer; that the description was obtained from Mrs. Sawyer and from old documents in her home. In the description written in the pad appear the words "also a lot" immediately following the word "Citronelle." On August 4, 1953, Mrs. Nichols, accompanied by Charles F. Walker, again visited Mrs. Sawyer on behalf of Gulf and gave her the lease which Mrs. Nichols had draws up. The lease is dated August 4, 1953, but there is some dispute whether Mrs. Sawyer executed and delivered it at that time or a few days later when, according to Mrs. Nichols, she returned to see Mrs. Sawyer.
The record discloses a rather lengthy running account of Gulf's effort to introduce in evidence, and Mrs. Sawyer's effort to keep out of evidence, the pad, or the three pages of the pad on which the description was written. The trial court sustained Mrs. Sawyer's objections to introduction of such memorandum. It is apparent that the memorandum was offered in evidence under the rule relating to refreshing the memory of witnesses from memoranda, as approved in the following cases: Roll v. Dockery, 219 Ala. 374, 122 So. 630, 65 A.L.R. 1473; Deal v. Hubert, 209 Ala. 18, 95 So. 349; Byars v. James, 208 Ala. 390, 94 So. 536; Singleton v. Doe ex dem. Smith, 184 Ala. 199, 63 So. 949; Birmingham Ry., Light & Power Co. v. Seaborn, 168 Ala. 658, 53 So. 241; Acklen's Ex'r v. Hickman, 63 Ala. 494, 35 Am.Rep. 54; Allison v. Briskey, 36 Ala. App. 225, 54 So.2d 317. But that is not the basis of Gulf's argument on this appeal. As we understand it, Gulf's insistence now is that the memorandum was admissible on the theory that it was part of the res gestae of the transaction. See: Coleman v. Adkins, 232 Ala. 351, 168 So. 184; Wallace v. W. B. Folmar & Sons, 215 Ala. 246, 110 So. 402; Ward v. Lane, 189 Ala. 340, 66 So. 499; Moses v. Katzenberger & Sons, 84 Ala. 95, 4 So. 237; 76 C.J.S. Reformation of Instruments § 83, subd. a, pp. 451-452. Since the trial court was not called upon to rule on the admissibility of the memorandum as being a part of the res gestae, Gulf cannot now charge error in refusing to receive it in evidence on that ground (assuming, without deciding, that it was admissible on that basis). As said in Thompson v. Drake, 32 Ala. 99, 101-102.
The principle is thus stated in 5 C.J.S. Appeal and Error § 1506d, p. 905: "A party offering, on one ground, evidence which is thereupon excluded may not, on appeal, urge that it was admissible on another ground." See: Melvin v. State, 32 Ala.App. 10, 21 So.2d 277. Cf. Garrett v. State, 268 Ala. 299, 306, 105 So.2d 541; Cotney v. State, 248 Ala. 1, 5, 26 So.2d 603; Archer v. Sibley, 201 Ala. 495, 496, 78 So. 849.
On redirect examination of Mrs. Nichols, Gulf undertook to question her (the record does not disclose any precise question being directed to Mrs. Nichols, but apparently it was understood by the court what Gulf was seeking to do) as to whether she could give a verbatim recital of the description as written in the pad. The trial court sustained Mrs. Sawyer's objection to such questioning "as not being in rebuttal to anything brought out on cross-examination." We find no reversible error in this action of the trial court. As said in Bertolla v. Kaiser, 267 Ala. 435, 443, 103 So.2d 736, 743:
On redirect examination Mrs. Nichols was asked the following question: "In transcribing the description which was given to you by Mrs. Sawyer, did you or not leave out a portion of that description by mistake?" She answered, "I did." This answer was stricken on Mrs. Sawyer's motion.
Mrs. Nichols had already testified to this effect without objection from Mrs. Sawyer on direct examination. We have held that "it is harmless error for the trial court to exclude evidence where such evidence was admitted at another time and in another from." Cole v. Louisville & Nashville R. Co., 267 Ala. 196, 200, 100 So.2d 684, 688; Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 196, 189 So. 757; Dukes v. State, 210 Ala. 442, 443, 98 So. 368.
Also, whether the question should be allowed on redirect examination was a matter resting within the sound discretion of the trial court. Moore-Handley Hardware Co. v. Williams, supra.
It might be noted, too, that the answer was excluded without error because it was in response to a question which was an ultimate question of fact to be resolved by the trial court. See: Upton v. Read, 256 Ala. 593, 596, 56 So.2d 644; Smith v. Dollar, 223 Ala. 661, 663, 138 So. 277.
On redirect examination of Mrs. Nichols, Gulf sought to ask her the following questions: "Mrs. Nichols, did you, as an agent of the Gulf Refining Company, have any authority vested in you, other than obtaining oil, gas and mineral leases?" "Mrs. Nichols, were you acting as an agent for the Gulf Refining Company in any way other than obtaining leases?" Objections to these questions were sustained. In taking such action the trial court said: "I don't think this is in answer to any rebuttal. That is the reason I am sustaining the objections." We find no reversible error in sustaining the objections. Bertolla v. Kaiser, supra.
SIMPSON, STAKELY and MERRILL, JJ., concur.